[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 3387 Introduced in Senate (IS)]
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119th CONGRESS
1st Session
S. 3387
To prohibit certain uses of automated decision systems to inform
individualized prices, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 8 (legislative day, December 4), 2025
Mr. Gallego introduced the following bill; which was read twice and
referred to the Committee on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To prohibit certain uses of automated decision systems to inform
individualized prices, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``One Fair Price Act of 2025''.
SEC. 2. PROHIBITION ON SURVEILLANCE-BASED PRICE SETTING.
(a) Surveillance-Based Price Setting.--
(1) In general.--Subject to paragraphs (2) and (3), it
shall be unlawful for a person to offer or charge different
prices to different consumers for the same, or a substantially
similar, product or service using, informed by, or based on, in
whole or in part, surveillance data.
(2) Safe harbor.--
(A) In general.--The following shall not be
considered surveillance-based price setting for
purposes of paragraph (1) if the conditions of
subparagraph (B) are met:
(i) A difference in price that is based
solely on reasonable costs associated with
providing the product or service to different
consumers.
(ii) A bona fide discount that is offered
to any member of a broadly defined group,
including teachers, active duty personnel,
veterans, senior citizens, or students.
(iii) A bona fide discount that is offered
to any consumer who affirmatively and knowingly
enrolls in a loyalty program.
(B) Conditions for exception.--The conditions
described in this subparagraph are the following:
(i) Any basis for a difference in
reasonable costs associated with providing a
product or service to different consumers is
disclosed to the consumer prior to purchase.
(ii) Any eligibility condition or criteria
for receiving or earning a bona fide discount
is clearly and conspicuously disclosed.
(iii) Any bona fide discount is offered
uniformly to any consumer who meets the
disclosed eligibility conditions or criteria.
(iv) Any surveillance data used solely to
offer or administer a bona fide discount is not
used for any other purpose, including
profiling, targeted advertising, or
individualized price setting.
(v) Any loyalty program that allows a user
to accrue and exchange points, credits, or any
similar nonmonetary system of value for a
product or service does not charge a different
price for those points, credits, or similar
nonmonetary system of value to different
consumers for the same or substantially similar
product or service.
(3) Inapplicability to insurance or credit products.--The
prohibition under paragraph (1) shall not apply to the business
of insurance or any credit product.
(b) Enforcement by the Commission.--
(1) Unfair or deceptive acts or practices; unfair methods
of competition.--A violation of subsection (a) or a regulation
promulgated under such subsection shall be treated as a
violation of a rule defining an unfair or deceptive act or
practice under section 18(a)(1)(B) of the Federal Trade
Commission Act (15 U.S.C. 57a(a)(1)(B)) and as a violation of
section 5(a) of the Federal Trade Commission Act (15 U.S.C.
45(a)) regarding unfair methods of competition.
(2) Powers of the commission.--
(A) In general.--Except as provided in subparagraph
(C), the Commission shall enforce subsection (a) and
any regulation promulgated under such subsection in the
same manner, by the same means, and with the same
jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade
Commission Act (15 U.S.C. 41 et seq.) were incorporated
into and made a part of this Act.
(B) Privileges and immunities.--Except as provided
in subparagraph (C), any person who violates such
subsection or a regulation promulgated under such
subsection shall be subject to the penalties and
entitled to the privileges and immunities provided in
the Federal Trade Commission Act.
(C) Common carriers, nonprofit organizations, and
air carriers.--Notwithstanding section 4, 5(a)(2), or 6
of the Federal Trade Commission Act (15 U.S.C. 44,
45(a)(2), 46) or any jurisdictional limitation of the
Commission, the Commission shall also enforce
subsection (a) or a regulation promulgated under
subsection (a), in the same manner provided in
subparagraphs (A) and (B), with respect to--
(i) common carriers subject to the
Communications Act of 1934 (47 U.S.C. 151 et
seq.) and all Acts amendatory thereof and
supplementary thereto;
(ii) organizations not organized to carry
on business for their own profit or that of
their members; and
(iii) air carriers and foreign air carriers
subject to the Federal Aviation Act of 1958.
(D) Rulemaking.--
(i) In general.--The Commission may
promulgate in accordance with section 553 of
title 5, United States Code, such rules as may
be necessary to carry out this section,
including guidance regarding how to comply with
subsection (a).
(ii) Small business concerns.--The
Commission shall consider rules necessary to
carry out this Act as having a significant
economic impact on a substantial number of
small entities for purposes of chapter 6 of
title 5, United States Code (commonly referred
to as the ``Regulatory Flexibility Act'').
(E) Authority preserved.--Nothing in this Act may
be construed to limit the authority of the Commission
under any other provision of law.
(c) Actions by States.--
(1) In general.--In any case in which the attorney general
of a State, or an official or agency of a State, has reason to
believe that an interest of the residents of such State has
been or is threatened or adversely affected by the engagement
of any person in an act or practice in violation of subsection
(a) or a regulation promulgated under such subsection, the
attorney general of the State, may as parens patriae, bring a
civil action on behalf of the residents of the State in an
appropriate State court or an appropriate district court of the
United States to--
(A) enjoin such act or practice;
(B) enforce compliance with such subsection or such
regulation;
(C) obtain, for each violation, the greater of--
(i) the actual monetary damages incurred
from the violation; or
(ii) $3,000; or
(D) obtain, for each violation, any other
restitution, penalties, and other legal or equitable
relief as the court may deem appropriate.
(2) Rule of construction.--For purposes of bringing a civil
action under this subsection, nothing in this Act shall be
construed to prevent an attorney general, official, or agency
of a State from exercising the powers conferred on the attorney
general, official, or agency by the laws of such State to
conduct investigations, administer oaths and affirmations, or
compel the attendance of witnesses or the production of
documentary and other evidence.
(d) Private Right of Action.--
(1) In general.--An individual who has been injured by a
person in violation of subsection (a) or a regulation
promulgated under such subsection may bring a civil action
against such person in an appropriate State court or an
appropriate district court of the United States to--
(A) enjoin the violation;
(B) obtain, for each violation, the greater of--
(i) the actual monetary damages incurred
from the violation; or
(ii) $3,000; or
(C) obtain, for each violation, any other
restitution, penalties, and other legal or equitable
relief as the court may deem appropriate.
(2) Willful violations.--If the court finds that the
defendant acted willfully in committing a violation described
in paragraph (1), the court may, in its discretion, increase
the amount of the award to an amount equal to not more than 3
times the amount available under paragraph (1)(B).
(3) Prima facie case; rebuttal.--
(A) Prima facie case.--In any proceeding commenced
pursuant to paragraph (1), the defendant shall be
presumed to be in violation of subsection (a) if the
plaintiff can demonstrate that--
(i) two or more individuals were offered
different prices by the defendant for the same,
or a substantially similar, product or service
during the same, or a substantially similar,
period of time; or
(ii) one individual was offered different
prices by the defendant for the same, or a
substantially similar, product or service
during the same, or a substantially similar,
period of time while using different means of
viewing the price.
(B) Burden of rebutting prima facie case.--The
defendant may rebut the presumption described in
subparagraph (A) by demonstrating that the alleged
difference in price was--
(i) not informed, in whole or in part, by
surveillance data; or
(ii) fully explained by the safe harbors
described in subsection (a)(2).
(4) Costs and attorney's fees.--The court shall award to a
prevailing plaintiff in an action under this subsection the
litigation costs of such action and reasonable attorney's fees,
as determined by the court.
(5) Limitation.--An action may be commenced under this
subsection not later than 5 years after the date on which the
individual first discovered or had a reasonable opportunity to
discover the violation.
(6) Nonexclusive remedy.--Bringing a civil action under
this subsection shall be in addition to any other remedy
available to the individual bringing such civil action.
(7) Invalidity of pre-dispute arbitration and joint action
waivers.--Notwithstanding chapter 1 of title 9, United States
Code (commonly known as the ``Federal Arbitration Act''), or
any other provision of law, a pre-dispute arbitration agreement
or pre-dispute joint action waiver between a person in
violation of subsection (a) and an individual is not valid or
enforceable for purposes of the individual bringing a civil
action against such person under this subsection.
(e) Joint Study and Report.--
(1) Study.--Not later than 1 year after the date of
enactment of this section, the Office of Advocacy of the Small
Business Administration (in this subsection referred to as the
``Office of Advocacy''), in consultation with the Commission,
shall conduct a joint study to evaluate the impact of this Act
on--
(A) small business concerns; and
(B) promoting competition between large and small
business enterprises.
(2) Report.--Not later than 180 days after the Office of
Advocacy completes the study under paragraph (1), the
Commission and the Office of Advocacy shall submit to Congress
a report on such study, including any relevant findings and
recommendations resulting from such study.
(f) Definitions.--In this section:
(1) Bona fide discount.--The term ``bona fide discount''
means an offered price that is lower than the genuine price at
which a product or service is widely offered to the public on a
regular basis for a reasonably substantial period of time and
not for the purpose of establishing a fictitious price to
enable the subsequent offer of a reduction.
(2) Business of insurance; credit.--The terms ``business of
insurance'' and ``credit'' have the meaning given such terms in
section 1002 of the Consumer Financial Protection Act of 2010
(12 U.S.C. 5481).
(3) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(4) Genetic information.--The term ``genetic information''
has the meaning given such term in section 2791(d) of the
Public Health Service Act (42 U.S.C. 300gg-91(d)).
(5) Personal information.--The term ``personal
information'' means any quality, feature, attribute, or trait
of an individual, including any immutable characteristic (such
as race and eye color), mutable characteristic (such as
address, weight, citizenship, family, or parenthood status),
genetic information, and any other information that could
reasonably be linked, directly or indirectly, with a particular
individual or household.
(6) Pre-dispute arbitration agreement.--The term ``pre-
dispute arbitration agreement'' means any agreement to
arbitrate a dispute that has not arisen at the time of making
the agreement.
(7) Pre-dispute joint action waiver.--The term ``pre-
dispute joint action waiver'' means an agreement, including as
part of a pre-dispute arbitration agreement, that would
prohibit, or waive the right of, one of the parties to the
agreement to participate in a joint, class, or collective
action in a judicial, arbitral, administrative, or other forum,
concerning a dispute that has not arisen at the time of making
the agreement.
(8) Price.--The term ``price'' means the amount charged or
offered to a consumer in relation to a transaction, including
any related cost and fee and any other material term of the
transaction that has direct bearing on the amount paid by the
consumer or the value of the product or service offered or
provided to the consumer.
(9) Small business concern.--The term ``small business
concern''--
(A) has the meaning given such term in section 3 of
the Small Business Act (15 U.S.C. 632); and
(B) shall not include a small business concern
involved in developing, training, or selling a product
or service for the primary purpose of aiding a business
to determine a price.
(10) Surveillance data.--The term ``surveillance data''--
(A) means data that is related to the personal
information, behavior, or biometrics of an individual;
and
(B) includes data gathered, purchased, or otherwise
acquired.
SEC. 3. APPLICATION OF PROHIBITION ON SURVEILLANCE-BASED PRICE SETTING
TO AIR CARRIERS AND TICKET AGENTS.
(a) In General.--Section 41712 of title 49, United States Code, is
amended by adding at the end the following:
``(d) Prohibition on Surveillance-Based Price Setting.--It shall be
an unfair or deceptive practice under subsection (a) for an air
carrier, foreign air carrier, or ticket agent to engage in
surveillance-based price setting, as described in section 2(a) of the
One Fair Price Act of 2025.''.
(b) No Preemption of Consumer Protection Claims.--Section
41713(b)(4) of title 49, United States Code, is amended by adding at
the end the following:
``(D) No preemption of surveillance-based price
setting claims.--Nothing in subparagraphs (A) through
(C) may be construed--
``(i) to preempt, displace, or supplant any
action for civil damages or injunctive relief
based on a violation of section 2(a) of the One
Fair Price Act of 2025; or
``(ii) to restrict the authority of any
government entity, including an attorney
general of a State, from bringing a legal claim
on behalf of the citizens of the State with
respect to any such violation.''.
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